Wednesday, October 29, 2014

Case against allegedly contaminated jerky treats proceeds

The court adopted the magistrate judge’s recommendation to
grant defendants’ motion to dismiss unjust enrichment claims, but to deny the
motion as to the consumer protection and warranty claims in this dog jerky
contamination case.

Plaintiff Funke sued on behalf of a class of purchasers of
chicken and beef jerky dog treats from Milo’s Kitchen, owned by Del Monte.She alleged that defendants misrepresented
the quality of the treats, that they contained contaminants, and that after she
fed the treats to her dog it became sick and ultimately had to be
euthanized.Among the allegedly
false/misleading claims on the products’ packaging and associated websites: “100%
Real—Wholesome and Delicious;” the ingredient list; “Milo’s Kitchen Home–Style
Dog Treats are 100% real jerky, sausage slices, and meatballs;” each piece of
Milo’s Kitchen Chicken Jerky “is made with whole fillets of 100% real jerky and
the quality and care your dog deserves,” without any artificial chicken flavors
or filler ingredients; and claims that their products comply with USDA, FDA and
other food safety rules.

The FDA released numerous cautions to consumers about
illness in dogs after consuming jerky treats made in China, as defendants’
were.Defendants’ statements that
neither the FDA nor the American Veterinarian Medical Association have been
able to identify the cause of the illnesses or a connection between the
illnesses and the jerky treats and that no contaminants have been found despite
extensive testing were allegedly deceptive.Funke further alleged that Milo’s safety process was deficient and that
the FDA investigation failing to detect contaminants was fundamentally flawed. Moreover, defendants allegedly failed to
respond adequately once the contamination was found.

Funke brought the usual statutory California claims.Defendants argued that the alleged
misrepresentations were mere puffery.Along with those listed above, plaintiff identified other alleged
misrepresentations: that defendants started making Milo’s Kitchen dog treats
because they believed dogs deserve treats made with the same quality of
ingredients and care that their owners want in their food; the jerky treats are
good for pets; and dogs deserve only the best with your food and deserve to
enjoy snacks that not only look like jerky, sausage slices and meatballs, but
actually are 100% real jerky, sausage slices and meatballs.

Other than the statements about defendants’ motivations for
making the treats and the claim that they’re “good for pets,” each of these
appeared verifiable and sufficiently specific to induce reliance. Moreover,
even the statements that were puffery standing alone could contribute to the
deceptive context of the packaging as a whole.

Funke also satisfied Rule 9(b) by alleging that defendants “engaged
in a continuous course of conduct since 2007 (the when), whereby they have made
misrepresentations on the jerky treat packaging and on their websites (the
where), that their products are wholesome, safe, and that they otherwise have
characteristics and qualities that they do not have which is likely to mislead
the public (the what), and that these misrepresentations are false because many
of the packages of jerky treats contain contaminants (the how).” Funke also adequately alleged reliance.

Plaintiff Ruff’s claims fared similarly.(Her dog also died.)She challenged similar claims, including
statements that the product is “100% REAL”; that it was made with “the quality
and care your dog deserves”; and that the jerky treats are “wholesome natural
treats.”She also challenged Milo’s
response to the FDA’s warnings as misleadingly downplaying the evidence and
failing to warn consumers of the dangers.She contended that neither she nor any reasonable person would have
bought the jerky treats if they had known of the material risk of serious harm
to their pets.Along with the usual
California claims, she alleged negligence and strict product liability.

The court found that Ruff adequately alleged a defect and
proximate cause.While an accident alone
isn’t sufficient to prove a defect, defects can be alleged by circumstantial
evidence such as that present here: Ruff bought a package of treats which she
fed to her healthy dog; with no other material changes to its diet, it fell
ill; it died from kidney failure within one week of consuming the treats; since
Nov. 2011, the FDA has logged over 900 reports of illness and death from kidney
failure in pets after consumption of jerky treats.

The court also found that Ruff could represent a nationwide
class for her California UCL and CLRA claims, even though she wasn’t a
California resident.California law may
be applied when the defendant is a California corporation, as here, and some or
all of the alleged misconduct emanated from California, as alleged here, where
Ruff pled that California was the headquarters for Del Monte’s US marketing and
that the California location provides all customer support and makes all
corporate decisions regarding marketing.She could also bring a North Carolina UDTPA claim, because she lived
there.

Ruff’s Magnuson-Moss Warranty Act claims for breach of the
implied warranty of merchantability survived even though there was no
privity.The rule requiring privity has
an exception for “foodstuffs,” and there was no reason to limit that exception
to human food.

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